Constitutionalism and the Enlargement of Europe

After the fall of Communism in Central and Eastern Europe (CEE), the newly democratized countries of this region joined two main pan-European political and legal structures: the Council of Europe and the European Union. This book shows how the Eastward enlargement of these two structures fostered the 'constitutionalization' both of the Council of Europe and of the EU. Prompted by the enlargement of the Council of Europe and the admission of a number of countries which brought unique and often more substantial problems onto the Court's agenda, the main judicial body of the Council of Europe, the European Court of Human Rights, became a quasi 'constitutional court' of Europe. This book demonstrates that this was primarily as a result of the widening of its agenda and the resulting need to make activist decisions about the compatibility of national laws with the European Convention. In terms of the EU, the book shows that the enlargement (first prospective, and then, actual) has been an important agenda-setter for the constitutionalization of the EU; in particular, for openly placing the issue of fundamental rights on the EU agenda as a legitimate and indispensable matter of concern for the EU. But the 'constitutional synergies' were a two-way street: the accession to both pan-European structures has also affected the development of democratic constitutionalism in CEE states. It has raised difficult issues regarding the relationships between national sovereignty, democracy, and human rights that CEE policy makers have grappled with; these issues and responses by CEE member states have had implications for the 'old' EU member states as well. These dynamics are explored through various case studies, providing a new perspective on the development of legal norms and institutions within European supranational bodies.

Introduction. 1. Enlargement of the Council of Europe and Constitutionalization of the European Court of Human Rights. 2. Fundamental Rights and EU Enlargement. 3. Return of the Solange Ghost: The Supremacy of the EU Law and the Democracy Paradox. 4. EU and Constitutional Democracy in New Member States. Conclusion. Bibliography.

Wojciech Sadurski is Challis Professor of Jurisprudence at the University of Sydney; he is also associated with the University of Warsaw, University of Trento, and Cardozo Law School in New York. Between 1999 and 2009 he was Professor of Legal Theory and Philosophy of Law at the European University Institute (EUI) in Florence; between 2003 and 2006 he was the head of Department of Law at the EUI. He has taught and worked as a visiting professor at various universities in Europe, Asia and the United States, including at Cornell University in Ithaca and Saint Louis University. He published extensively on jurisprudence, philosophy of law, political philosophy, constitutional theory, and comparative constitutional law. His published works include Equality and Legitimacy (OUP, 2008) and Political Rights Under Stress in 21st Century Europe (OUP, 2006).